|
~o
<br />5.6 Proprietary to Caremark. Member County and Customer acknowledge that the Formulary is
<br />proprietary to Cazemazk. Further, all Caremark databases, as well as the software, hazd coding, and logic used to
<br />generate the compilations of information contained in Cazemazk's Claims adjudication system and in all other databases
<br />developed by Caremark or its designees in connection with performing Services including identifiers assigned by
<br />Caremark, and the format of all reports, printouts, and copies there from, and any prior and future versions thereof by
<br />any name, are the property of Cazemazk and are protected by copyright which shall be owned by Cazemazk.
<br />5.7 Tradenames; Trademarks; and Service Marks. None of the parties hereto may use any
<br />tradenames, trademarks or service marks of another, or any word or symbol likely to be confused with such tradenames,
<br />trademarks or service marks, unless authorized in writing or as expressly permitted by this Agreement.
<br />5.8 Remedies. Any unauthorized disclosure or use of Confidential Information would cause Cazemazk,
<br />Member County or Customer immediate and irreparable injury or loss that cannot be adequately compensated with
<br />money damages. Accordingly, if any party hereto fails to comply with this Section 5, the other(s) will be entitled to
<br />specific performance including immediate issuance of a temporary restraining order or preliminary injunction enforcing
<br />this Agreement, and to judgment for damages (including reasonable attorneys' fees) caused by the breach, and to any
<br />other remedies provided by Law.
<br />6. LIMITATION OF LIABILITY; COMPLIANCE WITH LAW.
<br />6.1 Warranty. This Agreement is not a contract for the sale of goods. Cazemazk will perform the
<br />Services in a good and workmanlike manner in accordance with the customs, practices, and standards of providers
<br />skilled in the industry. EXCEPT AS WARRANTED IN THIS SECTION 6.1, CAREMARK DISCLAIMS ALL
<br />EXPRESS AND ALL IMPLIED WAR]~tANTIES OF ANY KIND, INCLUDING 'TIS SUITABILITY FOR ANY
<br />PARTICULAR PURPOSE OF TIC DATA GENERATED THROUGH THE CAREMARK SYSTEM. CAREMARK
<br />RELIES ON FIIZST DATABANK, MEDI-SPAN, OR INDUSTRY COMPARABLE DATABASES IN PROVIDING
<br />CUSTOMER, MEMBER COUNTY AND PARTICIPANTS WITH DRUG UTILIZATION REVIEW SERVICES.
<br />CAREMARK HAS UTILIZED DUE DILIGENCE IN COLLECTING AND REPORTING THE INFORMATION
<br />CONTAINED IN THE DATABASES AND HAS OBTAINED SUCH INFORMATION FROM SOURCES
<br />BELIEVED TO BE RELIABLE. CAREMARK, HOWEVER, DOES NOT WARRANT THE ACCURACY OF
<br />REPORTS, ALERTS, CODES, PRICES, OR OTHER DATA CONTAINED IN THE DATABASES. THE CLINICAL
<br />INFORMATION CONTAINED IN 'I'II DATABASES AND 'TFiE FORMULARY IS INTENDED AS A
<br />SUPPLEMENT TO, AND NOT A SUBSTITUTE FOR, TIC KNOWLEDGE, EXPERTISE, SKILL, AND
<br />JUDGMENT OF PHYSICIANS, PHARMACISTS, OR OTHER HEALTH-CARE PROFESSIONALS INVOLVED IN
<br />PARTICIPANT'S CARE. THE ABSENCE OF A WARNING FOR A GIVEN DRUG OR DRUG COMBINATION
<br />SHALL NOT BE CONSTRUED TO INDICATE THAT THE DRUG OR DRUG COMBINATION IS SAFE,
<br />APPROPRIATE OR EFFECTIVE FOR ANY PARTICIPANT. CAREMARK DOES NOT WARRANT THAT ITS
<br />SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
<br />6.2 Force Majeure. Except for the payment obligations set forth in Section 2 of this Agreement, the
<br />parties are excused from performance under this Agreement to the extent that a party is prevented from performing any
<br />obligation, in whole or in part, as a result of causes beyond its reasonable control, including, acts of God, waz, civil
<br />disturbance, court order, govermnental intervention, Change in Law, nonperformance by the other party or any third
<br />party, failures or fluctuations in electrical power, heat, light, air conditioning, or telecommunications equipment. Any
<br />nonperformance under this Section 6.2 will not constitute a default or a ground for termination of this Agreement.
<br />6.3 Indemnity. To the extent permitted by applicable Law applicable to Customer and each Member
<br />County, Customer and Member County shall indemnify and hold harmless Caremark and its officers, directors,
<br />employees, agents, successors, and assigns ("Caremark Indemnitees") for, from and against any damages, costs, or
<br />attorney's fees, actually incurred by Cazemazk a Caremark Indemnitee, as the result of a claim brought by any third
<br />party or a participant or beneficiary relating to the Services, provided that the Caremark Indemnitee has acted in a
<br />manner that is consistent with this Agreement and applicable standazds of Gaze. The foregoing indemnification shall not
<br />apply and shall not be enforceable to the extent any applicable Law prohibits a Member County from providing such
<br />indemnification. Caremark shall indemnify and hold harmless Member County, Customer and their officers, directors,
<br />employees, agents, successors, and assigns (collectively "Customer Indemnitees") for, from and against any damages,
<br />costs, or attorney's fees, actually incurred by any Customer Indemnitee, as the result of a third party claim that
<br />NACo k3-v2.doc (02/24/2006)1RxClaiml Page 6 of 29
<br />This document contains proprietary information of Caremazk, and may not be used for any purpose other than to evaluate entering into a relationship
<br />with Caremark, nor may it be duplicated or disclosed to others for any purpose.
<br />
|